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Court Adopts Narrow Approach to Pseudonymity in Title IX Wrongful-Discipline Cases

A federal judge suggested that plaintiffs can sue as John Does only to the extent that identifying them would also identify nonparties who want to remain anonymous (such as the students who accused the plaintiffs of sexual misconduct).


From Doe v. MIT, decided today by Judge Richard G. Stearns (D. Mass.):

On May 13, 2016, Doe was expelled from the Massachusetts Institute of Technology (MIT) following a Title IX proceeding involving accusations made against him by his ex-girlfriend, Jane Doe, of nonconsensual contact and forced sexual intercourse, and sexual harassment. On December 16, 2021, Doe sued MIT in this court for breach of contract, promissory estoppel, and denial of basic due process. According to Doe's Complaint, MIT's Title IX investigation had been compromised by a "[r]adical feminist anti-male bias on the MIT campus [that] guided the investigation report's conclusions …. MIT presumed the female complainant's story to be true (which it wasn't), and presumed John Doe not to be truthful (which wasn't the case) in order to avoid being found responsible."

Doe moved to proceed under a pseudonym on the same day. This court denied his motion, finding that his generalized expression of fear of future harm if self-identified as an alleged perpetrator of sexual assault, was too speculative to outweigh the court's historical concern for transparency and constitutional presumption favoring public access to judicial records….

[On appeal,] the First Circuit responded with an innovative four-part test to be used to determine those situations in which a party in a federal civil case might permissibly proceed under a pseudonym. The First Circuit vacated this court's order and remanded Doe's case for consideration under the new test….

The First Circuit identified four categories of "exceptional cases in which party anonymity ordinarily will be warranted." The identified general exceptions are: (1) where "a would-be Doe who reasonably fears that coming out of the shadows will cause him unusually severe harm (either physical or psychological)"; (2) where "identifying the would-be Doe would harm 'innocent non-parties'"; (3) where "anonymity is necessary to forestall a chilling effect on future litigants who may be similarly situated"; and (4) where the suit is "bound up with a prior proceeding made confidential by law."

Doe argues that all four prongs apply to his case. The court does not agree, except for the second prong of the First Circuit's test.

{While the First Circuit directed the district court to "consider any additional arguments by the parties as to whether the confidentiality requirements of FERPA and Title IX have weight with respect to John's particular situation" under the fourth prong, Doe has not addressed that issue with any particularity.

The court also notes that the third-prong exception threatens to swallow the rule contrary to the First Circuit's principle that "[l]itigation by pseudonym should occur only in 'exceptional cases.'" As the First Circuit recognized, the nature of adversarial litigation "frequently invade[s] customary notions of privacy and—in the bargain—threatens parties' reputations." Because parties seek anonymity precisely to avoid such harm, the third paradigm as written could apply to virtually any case in which parties wish to use a pseudonym.  The harm Doe identifies here—"reputational damages and consequences that flow therein as a result of the false allegations"—would also apply in a host of other areas, such as defamation, medical torts, and employment discrimination, where the record may reveal unflattering, embarrassing, or intimate facets of a party's past. Cf. Doe v. MIT (1st Cir.) (cautioning against a litigation world in which "Does and Roes would predominate," and warning that "[a] judicial system replete with Does and Roes invites cynicism and undermines public confidence in the courts' work.").}

Doe argues that his identification would harm an innocent non-party by eventually (or potentially) revealing the identity of Roe. Courts have found that nonparties have a "stronger case for anonymity" than a party who brings an action. While litigants "must be prepared to accept the public scrutiny that is an inherent part of public trials" by electing to use the courts, non-parties have not made such a choice….

For the foregoing reasons, Doe's Motion to Proceed Under Pseudonym will be provisionally granted. Doe will file under seal within ten (10) days of the date of this Order a disclosure of the identity of any other party or entity (other than his family and Jane Roe) who may have a direct interest in the outcome of the litigation. Doe is warned that absent a conclusive showing of ultimate harm it is unlikely that the court will allow the case to proceed to trial before a jury without prospective jurors being informed of Doe's actual identity.